High Court dismisses defendant's application to set aside default judgment due to lack of satisfactory explanation for the failure to appear.

THE HIGH COURT

[2025] IEHC 586

Record No. 2023 5930 P

BETWEEN

AHMAD HUSSIEN

PLAINTIFF

AND

DUNLEAVY MEATS UNLIMITED COMPANY

DEFENDANT

JUDGMENT delivered by Mr. Justice Sean Gillane on 3 November 2025

Introduction

1. This is the defendant’s application by way of notice of motion seeking an order setting aside judgment obtained by the plaintiff in default of appearance on the 31st of March 2025.

2. The underlying issues in these proceedings arise out of the plaintiff’s claim that he suffered an accident during the course of his employment with the defendant on or about the 3rd of January 2020.

3. A personal injury summons was issued on his behalf on the 5th of December 2023.

4. The plaintiff pleads that the defendant, its servants and/or agents directed the plaintiff to carry out a cleaning task whereby he was required to clean walls and a roof. The plaintiff claims that, in the course of his duties, the ladder on which he was working collapsed from under him, causing him to suffer personal injury, loss, damage, inconvenience and expense.

5. It is further pleaded that the defendant, its servants and/or agents failed, refused and/or neglected to provide adequate assistance to the plaintiff and/or an adequate ladder to the plaintiff for the purposes of the cleaning task.

Procedural Background

6. On the 23rd of January 2024, the personal injuries summons and affidavit of verification were served on the defendant at their registered office.

7. On the 5th of September 2024, a warning letter was sent to the defendant seeking that an appearance be entered within 28 days. This letter also indicated that if an appearance was not entered, a notice of motion in default would issue without further notice to the defendant.

8. On the 18th of February 2025, the notice of motion and grounding affidavit seeking judgment in default of appearance issued. At that time, there had been no reply to the aforementioned correspondence, and an appearance had still not been entered.

9. On the 31st of March 2025, an order for judgment in default of appearance was granted by Coffey J.

10. The order was perfected on the 1st of April 2025 and served on the defendant on the 4th of April 2025.

11. The order records that there was no appearance by, or on behalf of, the defendant on the hearing of the motion.

12. It is accepted that the order was regularly obtained in accordance with the Rules of the Superior Courts.

13. On the 11th of April 2025, the solicitors for the defendant wrote to the solicitors for the plaintiff indicating that they had instructions to ‘appeal’ the order of Coffey J. and sought the plaintiff’s consent to the proposed appeal.

14. Consent was not forthcoming and so a notice of motion seeking to have judgment set aside was issued on the 14th of April 2025.

15. An affidavit, dated the 14th of April 2024, has been filed in support of this application, sworn by Peter Loftus, the solicitor for the defendant, in which he says as follows: “a. The Defendant has instructed me to act in this matter, following the initial service of the Personal Injury Summons and the Notice of Motion for judgment in default of appearance. b. I say that my office did not communicate with the solicitor for the Plaintiff following the receipt of the instructions from my client to enter an appearance to the proceedings and to come on record on their behalf. c. I say that a copy of the Personal Injury Summons was delivered to the Defendants place of business by the Plaintiff on the 23rd of January 2024.

d. It was an oversight and error on my part that the appearance was not entered. It is accepted the motion was issued and we were furnished with same, by the Defendants, following service of same.”

16. The balance of the affidavit appears to deal with the nature of the defence that the defendant wishes to advance in the event that their application is successful.

The Position of the Parties

17. The difference between the parties in the application before me is quite stark.

18. The defendant says that the matter is governed by Order 13, rule 13(b) of the Rules of the Superior Courts and submits that the issues for determination are as follows: a. Has the defendant shown that it has a good defence to the plaintiff’s claim; b. Has the defendant shown that the interests of justice require that leave to defend the claim should be granted; and c. If the court accepts that it is appropriate to make an order setting aside the judgment, it would be necessary for the court to consider what terms might be appropriate.

19. The defendant says that Order 27, rule 15(2) of the Rules of the Superior Courts does not alter the legal position.

20. The plaintiff, however, submits that Order 27 does alter the legal landscape, and that the defendant is not entitled to the relief sought merely by satisfying the conditions of Order 13, rule 13(b) as set out above.

21. In oral submissions before me, the position of the parties was, helpfully, further clarified by counsel. The plaintiff was not contesting that the elements of a good defence were at least made out in principle.

22. In that regard, there is an affidavit before the court, sworn by Brian Dunleavy, a company director employed by the defendant, on the 30th of May 2025.

23. In his affidavit, Mr. Dunleavy sets out the position of the defendant, saying that they reject what is being alleged in terms of how the accident occured and its aftermath. Therefore, the court was not troubled by any further submissions in that regard.

24. For completeness, I should say that the affidavit of Mr. Dunleavy also refers to the affidavit of Mr. Loftus and, insofar as it is relevant, confirms what is said by Mr. Loftus in terms of oversight and error but does not add further detail on that aspect of the matter.

25. It was also unnecessary to hear detailed submissions on the terms that might be imposed in circumstances where the hearing concentrated on the argument as to whether, in principle, the judgment in default should be set aside.

Discussion

26. Before turning to the relevant rules and applicable case law, the essence of the difference between the parties can be expressed in the following manner: Does the applicable test involve two essential elements in accordance with what is provided for in Order 13 i.e., is there a good defence and if so, is it in the interests of justice to set the order aside? Or is there a further element that must be established i.e., that at the time of the default, ‘special circumstances’ existed which explain and justify the failure as provided for in Order 27?

27. Order 13 (‘Default of Appearance’) provides at rule 13 that: “Where final judgment is entered pursuant to any of the preceding rules of this Order: a. the Court shall, where it is satisfied on an application made for that purpose by motion on notice to the plaintiff that there is some irregularity in the proceedings or the process by which such judgment was obtained, set aside such judgment upon such terms, if any, as may be just; b. the Court may set aside such judgment notwithstanding that it was obtained in a regular manner and give leave to defend upon such terms as may be just, where it is satisfied by evidence on affidavit by or on behalf of the defendant in an application by motion on notice to the plaintiff that the defendant has a good defence to the plaintiff’s claim and that the interests of justice require that leave to defend should be given; c. the Court may, on an application made for that purpose, vary such judgment upon such terms, if any, as may be just.”

28. Order 27 (‘Default of Pleading’) provides at rule 15 that:

“1. Any order dismissing the plaintiff’s action for want of prosecution, whether under this Order or any other Order of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the failure special circumstances (to be recited in the order) existed which explain and justify the failure.

2. Any judgment by default, whether under this Order or any other Order of these Rules, may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit, if the Court is satisfied that at the time of the default special circumstances (to be recited in the order) existed which explain and justify the failure, and any necessary consequential order may be made where an action has been set down under rule 9.”

29. The Superior Courts Rules Committee, by amendment in 2021, substituted Order 13, rule 11 with the current Order 13, rule 13(b) (S.I. No. 490 of 2021). Order 27 was also substituted in full by that instrument and Order 27, rule 15(2) was substituted in 2022 (S.I. No. 454 of 2022). The consequent renumbering within Order 27 means that some of the older authorities refer to Order 27, rule 14(2) on the topic of ‘special circumstances.’ The special circumstances provision itself was introduced into the rules by S.I. No. 63 of 2004.

30. The defendant contends that the starting point of the analysis is to be found in Evans v. Bartlam [1937] AC 473, where the discretion to set aside a default judgment was described by Atkin L. as “unconditional.” The defendant further relies on another passage of that judgement in which they submit Atkin L. rejected the argument that there was a positive burden on the defendant in that case to satisfy the court that there was a reasonable explanation for why judgment was allowed to go by default.

31. The relevant part of this passage at page 480 reads in full: “It was suggested in argument that there is another rule that the applicant must satisfy the Court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion.”

32. It was submitted that this approach to the nature of discretion in cases where a defendant has established a defence to the claim has been faithfully followed in this jurisdiction for many years. In that regard, the defendant also relies on Maher v. Dixon [1995] 1 ILRM 218 where Budd J. held: “It seems to me that there is an onus on an applicant who wishes to have a judgment set aside. If the affidavit dealing with the merits of a defence discloses a defence and these matters are averred to in affidavit, Order 13, rule 11 of the Rules of the Superior Courts gives to the court an untrammelled discretion.”

33. Significant emphasis was placed by the defendant on the decision of Peart J. in Allied Irish Banks plc v. Lyons [2004] IEHC 129.

34. Lyons was a summary summons case to recover sums due and owing by the defendants. In that case, the solicitor for the defendants conceded on affidavit that he had been under the mistaken impression that “before the plaintiff could obtain judgment, they would be required to issue a motion in that regard” and said that, at all times, the defendants had intended to defend the proceedings.

35. In relation to the question of discretion, Peart J. said: “Clearly a wide discretion is given to the Court in its task of achieving justice between the parties, but the interests of both parties must be taken into account in the weighing exercise undertaken by the Court in considering the interest of each party, and not simply the hardship and distress pleaded on behalf of the applicant in this case.”

36. Having discussed the nature of the mistake, made by the solicitor for the defendant, he went on to say: “Judgment was certainly obtained by surprise, but only in the sense that the defendants thought that their solicitor was taking care of their interests. I accept that when they left their solicitor’s office, they would have been under the impression that the necessary steps would be taken to protect their interests as far as reasonably possible. I prefer to base my decision on the fact that a mistake has occurred, even if the cause of that mistake was more than mere oversight or inadvertence. I do not believe that justice would be properly achieved by simply leaving the second named defendant with a possible remedy against her solicitor, given the other alternative of setting aside the judgment on some terms which balanced the plaintiff’s prejudice by so doing.”

37. The decision in Lyons was referred to in McGrath v. Godfrey [2016] IECA 178, another summary summons case, as an example of the most frequent type of application brought by a defendant to set aside a regularly obtained judgment i.e., where a defendant seeks to rely upon some mistake on the part of their solicitor to do so. Godfrey is relied upon by the defendant as another instance of the wide discretion principle, as set out in Lyons, being applied.

38. At paragraph 20, having set out the relevant part of Order 13, rule 11 Irvine J. (as she then was) said: “It is clear from this rule that the relief that may be afforded to an applicant is one which is at the Court's discretion. However, the rule provides no guidance as to the circumstances in which a Judge might exercise that discretion and neither does it seek to impose any time constraints upon the intended applicant. Helpful assistance in relation to the first of these matters is however to be found in the decision of Peart J. in Allied Irish Banks plc v. Lyons [2004] IEHC 129, in which he emphasised the breadth of the discretion conferred by the rule and the necessity for the Court to seek to achieve justice for both the plaintiffs and the defendant.”

39. At paragraph 24, Irvine J. went on to say that balancing the parties’ interests can be far from straightforward when a court is satisfied that the defendant has established the existence of a “defence which has a real chance of success.” Lyons was referred to as an illustration of the “dilemma” that can be faced by a judge in those circumstances.

40. In expressing the court’s conclusions, Irvine J. went on to say:

“In circumstances where the judgment was obtained in a regular manner, the onus was on the defendant to demonstrate the existence of a defence which had a real prospect of success and thereafter to establish the existence of some special circumstances such that, having weighed the interests of both parties, would have warranted the trial judge setting aside the judgment. Integral to that issue was proof by the defendant that he would be in a position to pursue a defence which had a real chance of success if the order were to be set aside. For my part, I am satisfied that he did not discharge that onus in the materials which he put before the High Court.”

41. Significantly, Irvine J. referred to an onus to establish “special circumstances,” albeit that phrase was not used in specific reference to Order 27.

42. EMO Oil Ltd v. Willowrock Ltd [2016] IECA 200 was another summary summons case wherein a mistake or error led to a failure to enter an appearance.

43. At paragraph 25, Irvine J. (as she then was) referred to the nature of the discretion under Order 13, rule 11 in almost identical terms to the decision in Godfrey delivered approximately one month previously.

44. Irvine J. also, at paragraphs 29-34 of the judgment, repeated the court’s observations in Godfrey regarding the assistance to be derived from the decision in Lyons, referring to the “relatively unfettered discretion as to the terms upon which it will set aside any judgment obtained regularly.” Much of the discussion in that case turned on the terms imposed in the High Court as a condition of setting aside the judgment.

45. The plaintiff submits that the conditions for relief have not been established in the absence of evidence that, at the time of the default, special circumstances existed which explain and justify the failure.

46. In that regard, the plaintiff relies on the decision of the Court of Appeal in Fabri-Clad Engineering v. Stuart [2020] IECA 247.

47. The defendant says that the portion of the judgment in Fabri-Clad that is relied upon by the plaintiff, where the relationship between Order 13 and Order 27 was discussed, was obiter and that there is no basis for this Court to follow it.

48. The parties are agreed that the complicated factual background in Fabri-Clad is of little relevance to this case.

49. It is undoubtedly the position that Whelan J. concluded, at paragraph 128, that the failure of the appellants to demonstrate the existence of a defence which on balance had a real prospect of success, were the judgment to be set aside, was dispositive of the matter. It is, strictly speaking, correct, therefore, to describe the later comments regarding the interests of justice, in considering whether to set aside the judgment in default, as obiter.

50. However, Whelan J. explicitly addressed the interests of justice question “for completeness” and explored the possible relevance of Order 27 in an application to set aside a judgment regularly obtained.

51. I think it is significant that the Court of Appeal addressed this issue in circumstances where Binchy J. in the High Court had found that, while prior to the introduction of Order 27 the court was very much at large in its discretion, the effect of the Order was that the court must be satisfied that there were special circumstances that caused the default giving rise to the judgment. In reaching that conclusion, he relied on the decision in Godfrey and the passage quoted above.

52. It is also clear from the judgment that this issue was the subject of argument and submission before the Court of Appeal.

53. At paragraph 132, Whelan J. observed that: “Order 27, r. 14(2) is also relevant. As the respondent correctly argued, O. 27, r. 14(2) provides that any judgment by default, whether under O. 27 or any other of the rules, may be set aside by the court upon such terms as to costs or otherwise as the court may think fit, if the court is satisfied that at the time of the default, special circumstances (to be recited in the order) existed which explain and justify the failure. This provision was introduced into the rules by S.I. No. 63 of 2004.”

54. At paragraph 133, Whelan J. also said: “In the High Court, the trial judge referred to para. 4-42 of Delany and McGrath on Civil Procedure, which is set out in full at para. 26 of this judgment, in which the authors express doubt over whether O. 27, r. 14(2) modifies O. 13, r. 11. I share the authors' doubt and there is certainly ambiguity as to whether the provision is applicable in circumstances where a judgment has been obtained in default of appearance such as would result in a material modification of O. 13, r. 11.”

55. Having referred to McGuinn v. The Commissioner of An Garda Siochana [2011] IESC

33 and Godfrey, Whelan J. said at paragraph 137: “In my view that approach to the test applicable when considering a motion brought pursuant to O. 13, r. 11 encompasses within it the considerations to be found in O. 27, r. 14(2). Applying that test to the instant case I am satisfied that no ‘special circumstances’ have been identified, although clearly there seems to have been some apparent disconnect between the appellant and his own solicitor that, in my view, on the facts of this case, does not amount to a special circumstance such as would support the setting aside of the judgment. It is a matter furthermore in respect of which the respondent is wholly blameless.”

56. It can also be seen that, in expressing the matter in this way, Whelan J., in the immediately preceding paragraph 136, relied on the same observations of Irvine J. in Godfrey regarding the requirement to establish special circumstances, which were also relied on by Binchy J. in the High Court.

57. McGuinn concerned an action for unlawful arrest and false imprisonment where the failure to file a defence was significantly contributed to by a miscommunication whereby the solicitors for the plaintiff, in correspondence with the solicitors for the defence, incorrectly stated that a motion had been struck out.

58. In that case, the application to set aside judgment was moved under Order 27 and Murray J. commented: “Until the Rule was amended in 2004 that was the basis on which a judgment might be set aside in the exercise of the Court's discretion and indeed the terms of the Rule had remained essentially the same as that in order 27 Rule 17 of the Rules of the Supreme Court (Ireland) 1905. (See Wylie's Judicature Acts (1906)).

The Rule was amended by Statutory Instrument No. 63 of 2004 by the insertion of the phrase, after the foregoing text, ‘if the Court is satisfied that at the time of the default special circumstances … existed which explain and justify the failure, …’.

The amendment to the longstanding Order 27 Rule 4 [Rule 14] is specific and narrowly focused. For an applicant to succeed under the terms of the Rule he must first of all demonstrate that there were ‘special circumstances’ explaining and justifying the failure at the time when the judgment was obtained. [Emphasis added].”

59. The plaintiff also submits that the decision of Brett J. in Reidy v. Ryan [2024] IEHC 597 is consistent with the argument put forth by him that showing the existence of special circumstances at the time of the default is now part of the test.

60. Reidy was an assault and false imprisonment case where no appearance was entered, and judgment was entered with damages to be assessed at a later date. As in this case, it was accepted that judgment had been obtained in a regular manner. Again, the case involved error, albeit on the part of an insurer, which was significant in terms of the ultimate result in the case.

61. Brett J. commenced dealing with the law in this area from paragraph 26 of her judgment. It is true to say that it appeared as though there was agreement between the parties as to the applicable law as Brett J. commenced her analysis by saying “the relevant law is not in dispute.”

62. The defendant in this case says that, for this reason, the case is not to be regarded as persuasive and should not be followed, as the point argued here was apparently not taken by the defendant in that case.

63. At paragraph 26, Brett J. said: “The motion was brought pursuant to O.13 r.13 which relates to setting aside a final judgment but is perhaps more appropriate to O.27 r. 15(2), which deals with setting aside a judgment obtained in default. No issue was taken with the Order relied on however and authorities covering applications to set aside judgments arising under both O.13 r.13 and O.27 r. 15(2) of the RSC (as they are now) were relied upon. In order to set aside the judgment obtained by the Plaintiff against it, the Second Defendant accepted it must establish: i. special circumstances existing at the time of the judgment (i.e. March 2022) that justify the setting aside of the judgment and which must be stated in the Order (Fabri-Clad Engineering Ltd v Stuart [2020] IECA 247; McGuinn v Commissioner of An Garda Siochana [2011] IESC 33);

De Souza v Liffey Meats Cavan Unlimited Company & Ors [2023]

IEHC 402; Costern Unlimited Company v. Fenton [2023] IEHC 552. Special circumstances, which are more than just a good reason and connotes something that is beyond the ordinary but is not required to reach a threshold of extraordinary (Murphy v The HSE [2021] IECA 3) must be established before the question of justification arises (Nolan v BOM of St Mary's Diocesan School [2022] IECA 10). ii. that it has a good defence to the Plaintiff's claim on the merits that has ‘a real prospect of success’ (O Callaghan v O Donovan (unreported, Supreme Court 13th May 1997); AIB v Lyons [2004] IEHC 129; O Tuama v Casey [2008] IEHC 49; O Donovan Dairy Services Ltd c [sic] Cashin [2016] IEHC 476; Slattery v McCoy [2021] IEHC 9; iii. that the interests of justice favours setting aside the judgment and allowing the defendant defend the proceedings. A court has an ‘untrammelled discretion’ in such consideration (Maher v Dixon [1995]

1 ILRM 218). Prejudice can impact on the exercise of such discretion.” (Emphasis added.)

64. Brett J. analysed what is required for special circumstances to be established in paragraphs 28 to 41. At paragraph 48, before considering the interests of justice, she said special circumstances must “justify” the setting aside of the judgment.

65. It is important to note that in the case before me I asked counsel for the defendant whether, if the Court held against the defendant on the issue of special circumstances, there was anything further to be urged in terms of the evidence before the Court. With commendable clarity, counsel conceded that if special circumstances were required to be established, the evidence would not meet that test.

66. Strictly speaking, therefore, a close analysis of some of the authorities referred to by Brett J. on this issue are not required for the purposes of my decision.

67. However, I do note that some of those authorities look at the question of error and, in particular, a solicitor’s error.

68. In Murphy v. HSE [2021] IECA 3, Haughton J. was concerned with the question of special circumstances that would justify an extension to renew a summons under Order

8. Having pointed out that the rule does not identify what might amount to special circumstances, Haughton J. went on to say at paragraphs 69-72: “However, some general observations may be made.

Firstly, whether special circumstances arise must be decided on the facts of a particular case, and it would be unwise to lay down any hard and fast rule.

Secondly it is generally accepted that it is a higher test than that of ‘good reason’. This would seem to follow from the fact that the application to the Master is made before the summons lapses, and O. 8 does not require the Master to state the ‘good reason’ in the order.

It also follows from the use of the word ‘special’. While this does not raise the bar to ‘extraordinary’, it nonetheless suggests that some fact or circumstance that is beyond the ordinary or the usual needs to be present.”

69. He also went on to say at paragraph 77: “At the level of principle a question also arises as to whether inadvertence on the part of a plaintiff or their solicitors can ever amount to or be relied upon as a special circumstance. As far as a plaintiff is concerned this is very fact dependant and it is probably not helpful to speculate in a vacuum. As far as legal advisors are concerned in my view inadvertence or inattention, for example in effecting service of the summons, will rarely constitute ‘special circumstances’. Legal advisors must be taken to be aware of the twelve month time limit for service of the original summons, and the consequences of allowing it to lapse. Peart J., in the context of ‘good reason’, in Moynihan v Dairygold Co-operative Society Limited [2006] IEHC 318, said — ‘38 …This is an opportunity to give a timely warning to practitioners that proper attention must be given to the question of service of proceedings after issue, especially where there is a likelihood that after expiration of one year from the date of issue, the Statute will have expired.’ If inadvertence of this nature would not reach the threshold of ‘good reason’ it is even more unlikely to amount to ‘special circumstance’.”

70. De Souza v. Liffey Meats (Cavan) Unlimited Company [2023] IEHC 402 was a case that involved a claim for personal injuries arising out of the defendants’ alleged negligence in respect of various aspects of the plaintiff’s employment as a general operative in a meat production plant.

71. Ferriter J. had to consider an application brought by the defendants for an order setting aside an ‘unless order,’ which granted judgment to the plaintiff, with damages to be assessed at a later stage, unless the defendants delivered their defence within a 10-week time period. The defence was not delivered within that time.

72. The defendants sought to establish that ‘special circumstances’ within the meaning of Order 27, rule 15(2) justified the setting aside of the order.

73. At paragraph 43, Ferriter J. pointed out that the wording closely mirrored the wording in Order 8, rule 1(4). He referred to Murphy and the comments of Haughton J. at paragraphs 70-72 (see above) in respect of what is required to establish special circumstances.

74. Dealing with the question of whether a solicitor’s mistake or inadvertence can amount to special circumstances within the rule, Ferriter J. referred to the remarks of Haughton

J. at paragraph 77 of his judgment (see above).

75. Ferriter J. then went on to say at paragraph 56: “Counsel for the defendants submitted that a ‘more tolerant’ view of special circumstances could be taken under O. 27 r. 15(2) than under O. 8 r. 1(4) as the rationale for the two rules was different. I do not believe it is helpful to approach the matter on the basis of degrees of tolerance. It is clear that, in respect of both rules, a more demanding set of reasons or circumstances is required than under the old regime, as part of a general tightening of approach to compliance with deadlines and expedition of litigation in light of the constitutional and Convention imperatives of ensuring that justice is administered efficiently and expeditiously. It does not seem to me that there is any basis for applying a more lax or tolerant view of what might amount to special circumstances under O.27 r.15(2) than under O. 8 r. 1(4). It can readily be seen how, given that the 12- month time limit for service of a summons following its issue is a fixed and wellknown period, that a mistake by a legal adviser in relation to that period would not amount to a ‘special circumstance’ in the normal course. While I do not think that the same reasoning is necessarily transferable to the concept of special circumstances under O.27 r.15(2) (given that there to no one fixed period for delivering a defence to judgment in default; it will depend on the terms of the order agreed or imposed), the general point remains that to treat a mistake or inadvertence by a solicitor as to the period ordered by a court for delivering a defence, failing which judgment will follow, would risk undermining the rationale for the rule being that of ensuring greater compliance with deadlines and court orders and ending the old culture of lax approaches to court-imposed deadlines and indulgence of disregard for court orders on procedural matters.”

76. At paragraph 57, Ferriter J. went on to specifically adopt the approach of Haughton J. in Murphy and said that: “… while each case will be fact-specific and it is not wise to lay down any hard and fast rule, generally speaking solicitor mistake or inadvertence as to the terms or existence of an order for judgment in default (including an unless order) will not amount to special circumstances within the meaning of the rule.”

77. In terms of the general approach, he also indicated, at paragraph 67, that once satisfied that special circumstances were made out, it was necessary to turn to the balance of justice in relation to whether the judgment should then be set aside.

78. The approach of Ferriter J. in De Souza was specifically approved by the Court of Appeal in Bowe v. Sherriff [2025] IECA 14 at paragraph 36.

Decision

79. Having carefully considered the matter, I cannot accept the defendant’s submission that the reasoning in Fabri-Clad is not binding on me, and ought not to be followed, on the basis that the comments were obiter and of no wider application.

80. While that case concerned an application to set aside a judgment in default of appearance pursuant to Order 13, rule 11, Whelan J. in her analysis found that Order 27, rule 14(2) was also relevant. She directly addressed the issue of the requirement of special circumstances and did so in circumstances where the matter had already been addressed by Binchy J. in the High Court and where detailed submissions and argument were heard on the topic.

81. I am of the view that it is impossible to ignore or disapply Whelan J.’s finding at paragraph 137 of Fabric-Clad that the test applicable when considering a motion brought pursuant to Order 13, rule 11 “encompasses within it” the considerations to be found in Order 27, rule 14(2). (Emphasis added.)

82. Whelan J. went on to find that no special circumstances were in fact identified in that case.

83. I am also of the view that it is significant that Whelan J. expressed her conclusion on this issue immediately after citing the observations of Irvine J. in Godfrey, where she described an onus on the defendant to establish the existence of some special circumstances in order to set aside a judgment obtained in a regular manner.

84. It seems to me that this is also consistent with the analysis and reasoning of Brett J. in Reidy and Ferriter J. in De Souza, and I gratefully and respectfully follow their respective approaches.

85. Ferriter J.’s reference to a more demanding set of reasons or circumstances being required represents part of a general tightening of approach to compliance and is reflected in the amended Order 27, rule 15(2) which plainly catches any judgment by default, “whether under this Order or any other Order of these rules…” (Emphasis added.)

86. I acknowledge the well-known dictum of Bowen L.J. in Cropper v. Smith (1884) 26 Ch. D. 700 (endorsed by Geoghegan J. in Croke v. Waterford Crystal Ltd [2005] 2 I.R. 383), where he stated:

“… it is a well established principle that the object of the Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace.”

87. While some general guidance as to the correct approach can be found in those remarks, they cannot displace the requirements of the rules and what I find to be the clear approach of the Court of Appeal as expressed in Fabri-Clad.

88. In the defendant’s written submissions, reference is made to paragraphs 4-42 of the 4th edition of Delaney and McGrath on Civil Procedure in relation to the interaction between Order 27 and Order 13 which was also referred to in Fabri Clad (see above). However, the observations of the authors are developed in the 5th edition of that work at paragraphs 4-47 in the following terms: “It should be noted that Order 27, rule 15(2)118 provides that any judgment by default, whether under Order 27 or any other of the Rules, may be set aside by the court upon such terms as to costs or otherwise as the court may think fit, if the court is satisfied that, at the time of the default, special circumstances (to be recited in the order) existed which explain and justify the failure. It was not clear whether this rule, which was introduced to confine the discretion of the court when dealing with an application to set aside a default judgment, applied to a judgment obtained in default of appearance so as to modify Order 13, rule 11. That issue was resolved in Fabri-Clad Engineering Ltd v Stuart,119 where Whelan J stated that the approach applicable when considering an application to set aside a judgment obtained in default of appearance encompasses within it the special circumstances consideration to be found in Order 27, rule 15(2).” (Emphasis added.)

89. This appears to me to be consistent with the view I have taken on the authorities.

90. Something more also needs to be said about the evidence in this case as I am of the view that, even if there was no onus to establish special circumstances, when one has regard to the interests of justice it is difficult to see how there is a basis for setting aside the judgment even when considering the more ‘relaxed’ Order 13, rule 13 test.

91. It is clear that a number of steps were taken by the plaintiff in this case: service of a personal injury summons, issuing a warning letter and issuing a notice of motion and affidavit. The order reflects that when the motion came on for hearing, there was no appearance at all on behalf of the defendant. Counsel for the plaintiff placed heavy emphasis on this, and on the series of largely unexplained events before judgment was entered, during argument.

92. He submitted that even if he was wrong in respect of the application of the legal principles discussed above, relief should be refused.

93. The defendant takes no issue with service of any of the relevant documents.

94. The affidavit of Mr. Loftus sworn for the purpose of grounding the application to set aside judgment simply says: “a. The defendant instructed him to act ‘following the initial service of the personal injuries summons and the notice of motion for judgment in default of appearance’; b. His office did not ‘communicate with the solicitor for the plaintiff following receipt of the instructions from my client to enter an appearance to the proceedings and to come on record on their behalf; c. ‘It was an oversight and error on my part that the appearance was not entered. It is accepted the motion was issued and we were furnished with same, by the Defendants following service of same.”

95. The affidavit of Mr. Dunleavy does not advance matters any further and he simply says at paragraph 11: “I beg to refer to the affidavit of Peter Loftus sworn on 14 April 2025 when produced. As is set forth therein, the necessity for the present application arising [sic] from an unfortunate oversight and error in the office of the Defendant’s solicitor.”

96. During the course of exchanges with counsel for the defendant when the motion was opened, I asked whether there was anything to be added to the explanation advanced in the affidavits. Counsel indicated clearly that the evidence was as deposed and there was nothing further the defendant could add nor was further time sought to do so.

97. I am of the view that the explanation in the affidavit is terse to the point of being perfunctory and invites more questions than it answers. There does not appear to be any engagement at all with the matters, set out above, in respect of the steps taken by the plaintiff or the failure to appear in court, and there is no real attempt by the defendant to explain them.

98. It is clear that the interests of justice, in general terms, are best served by parties to litigation being allowed to litigate the actual dispute between them, on the merits, in court. However, it does not seem to me to be an inappropriate disciplining of a party or overzealous policing of procedure to require some explanation of the error(s) or inadvertence which led to the default judgment.

99. How else is a court to resolve the “dilemma,” as it was described by Irvine J. in Godfrey by reference to the decision of Peart J. in Lyons? Otherwise, the court is being asked, in effect, to ‘nod through’ an application to set aside a judgment regularly obtained by the plaintiff.

100. For all of the above reasons, I must refuse the relief sought in the notice of motion.